Delhi District Court
State vs . Md. Akram on 23 July, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
CNR No. DLCT020031962016
State Vs. Md. AKram
FIR No. 88/16
PS : Hauz Qazi
U/s 25/54/59 Arms. Act
Date of Institution : 21.04.2016
Date of reserving of order : 23.07.2018
Date of Judgment : Oral
J U D G M E N T
1. Serial No. of the case : 291717/16
2. Name of the Complainant : HC Hardayal
3. Date of incident : 06.04.2016
4. Name of accused person :
Mohd. Akaram S/o Sh.Md. Harun
R/o H. No. K17, Qila Kadam Sharif,
Nabi Karim, Paharganj, Delhi
5. Offence for which chargesheet
has been filed : U/s 25 Arms Act
6. Offence for which charge
has been framed : U/s 25 Arms Act
7. Plea of accused : Not guilty
8. Final Order : Acquitted
Present: Sh. Santosh Kumar, Ld. APP for the State.
Sh. Sanjay Dalal, Ld. LAC for the accused.
FIR No. 88/2016 State Vs Akram Page 1 of 18
PS: Hauz Qazi
BRIEF REASONS FOR ORDER:
1.Mr. Md. Akram, the accused herein, has been charged for committing offence punishable under Section 25 Arms Act.
2. The case of the prosecution is that on 06.04.2016 at about 07:00 p.m, at 84 Ghanta, near Police Booth, Sita Ram Bazar, Delhi within the jurisdiction of PS Hauz Qazi, the accused was found in possession of a buttondar knife without any license or permit. He was apprehended by HC Hardayal, who made a complaint by preparing a Tehrir. On the basis of information above mentioned FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge sheeted for the offence punishable under Section 25 Arms Act.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offences punishable under Section 25 Arms Act was framed against the FIR No. 88/2016 State Vs Akram Page 2 of 18 PS: Hauz Qazi accused. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 04 witnesses to prove its case against the accused.
5. PW1 ASI Hardayal is the complainant. He has deposed that on 06.04.2016, at about 05:45 p.m, he alognwith Ct. Muddin Khan was in the area on patrolling duty. They were patrolling at 84 Ghanta, Sita Ram Bazar, Delhi. They were checking two wheelers at the spot. At about 07:00 p.m, one person who was driving a Yamaha Fazer Motorcycle had come at the spot. The front number plate of the said motorcycle was defected and it was folded. They stopped the driver and demanded the documents of the vehicle. However, he failed to produced the any documents of the vehicle. He was having apprehension due to the said fact and therefore, he checked the details of the motorcycle on auto match website of Delhi Police which contains the data of stolen vehicles. The said vehicle was found to be a stolen one. The registration no. of the vehicle was DL3SBS5185. The EFIR bearing No. 20336/2015, epolice station was shown to be registered in relation to the abovesaid vehicle. Thereafter, the said person was personally searched. A buttondar knife was recovered from the right pocket of his FIR No. 88/2016 State Vs Akram Page 3 of 18 PS: Hauz Qazi pants. He had asked 45 passersby to become a witness of the personal search of the accused, however they had denied to become a witness after telling their problems. Thereafter, he prepared the seizure memo of the motorcycle. Thereafter, he opened the buttondar knife by using its button. He prepared the rough sketch of the knife. He took the measurement of the knife. The total length of the open knife was 23 centimeters. The length of sharp edged portion was 10.5 Centimeters and its handle was about 12.5 Centimeters. Maximum width of the sharp edged portion was 2.5 Centimeters. He prepared the sketch the knife of the which is Ex. PW1/A. He sealed the said knife in a pullanda and sealed with the seal of HD and seized it vide memo Ex.PW1/B. He seized the motorcycle vide memo Mark B. He handed over the same to Ct. Muddin. He prepared rukka, which is Ex.PW1/C and handed over to Ct. Muddin for registration of FIR. After some time Ct. Muddin came back with HC Sunil Kumar. He handed over sealed pullanda, seizure memo, sketch of knife and the accused to HC Sunil Kumar. HC Sunil Kumar prepared the site plan at his instance. The witness identified the knife in the Court, which is Ex. P1.
6. PW2 PW HC Muddin Khan is the police official, who was present on patrolling with complainant FIR No. 88/2016 State Vs Akram Page 4 of 18 PS: Hauz Qazi HC Hardayal. He has deposed similar to PW1 ASI Hardayal. IO HC Sunil Kumar had arrested the accused in his presence vide memo Ex. PW2/A and his personal search was conducted vide memo Ex. PW2/B. The accused was medically examined. The seal after use was handed over to him by HC Hardayal and he had returned the same on next date.
7. PW3 SI Madan Lal is the Duty Officer He registered FIR No. 88/2016, which is Ex.PW3/A (OSR). He had also issued a certificate under Section 65B Indian Evidence Act which is Ex.PW3/B
8. PW04 Statement of ASI Sunil Kumar is the IO. Who had reached at the spot after registration of FIR. He had prepared the site plan, which is Ex. PW4/A. He had arrested the accused and conducted his personal search. He had prepared the challan.
9. The prosecution evidence was closed. Accused was examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. Substance of incriminating evidence was put to him. He denied all the incriminating evidence. He would state that he was innocent and falsely implicated in this case by the police officials. He would state that on the date of incident he was picked by police officials from Sadar FIR No. 88/2016 State Vs Akram Page 5 of 18 PS: Hauz Qazi Bazar alongwith his friend and thereafter he was falsely implicated.
10. The accused led defence evidence. He examined his friend Md. Sufian as DW1. He himself entered into witness box by moving application under Section 315 Cr.P.C and examined himself as DW2. Both of them have deposed that they were present in Sadar Bazar for selling the materials in the market which the accused had prepared in his factory. They both were apprehended by the police officials from the market and took them to the PS. Md. Sufian was released. However, present case was made against accused Md. Akram. They have deposed that nothing was recovered from the possession of accused.
11. Both the witnesses were crossexamined by learned APP. Thereafter, DE was closed and matter was fixed for final arguments.
12. Ld. APP for the State would argue that the prosecution has proved all the ingredients of the offence against the accused beyond reasonable doubts. The prosecution witnesses have deposed regarding the apprehension of the accused with illegal knife. All the proceedings have been conducted as per law. DW1 and DW2 are interestd witnesses and they have deposed FIR No. 88/2016 State Vs Akram Page 6 of 18 PS: Hauz Qazi falsely to save the accused. Hence, the guilt of the accused has been proved beyond reasonable doubts and therefore and therefore, accused may be convicted.
13. Ld. counsel for accused would argue that nothing was recovered from accused at the time of his arrest and he has been falsely implicated in the present case. Ld. counsel for accused would further argued that police had planted the said buttondar knife upon accused with intention to send him behind bars. He would also argued that all the prosecution witnesses are police officials of the same police station and they all are interested witnesses. No independent public person had been asked to join the proceedings to prove the factum of recovery of the knife in question from accused despite spot in question being a crowded place. There are various contractions in the testimonies of the prosecution witnesses which create reasonable doubts on the story of prosecution. DW1 and DW2 have deposed on oath and nothing contradictory had come in their cross examination. They have proved that the accused was falsely implicated. It has been prayed that the benefits of doubts may be given to the accused and he may be acquitted.
FIR No. 88/2016 State Vs Akram Page 7 of 18PS: Hauz Qazi
14. I have heard the rival submissions and carefully perused the material available on record.
15. In a criminal case the initial burden is on the prosecution to prove the guilt of the accused beyond reasonable doubts before the accused is asked to prove his defence. It is also settled proposition of law that whenever there are two views possible, the view which favours innocence of the accused is to be accepted by the Court.
16. In the present case, the allegations against the accused are that he was found in possession of a buttondar knife without having any valid license. Keeping a buttondar knife with a sharp edged blade of 7.62 c.m, or more in length and 1.72 c.m or more in breadth within the territory of Delhi is an offence unless the holder has a license under the Arms Act. The notification of Delhi Administration dated 29.10.1980, copy of which is Ex. A4 provides for the same.
17. In the present case, as the record would reveal, all the prosecution witnesses are police officials. No independent public witness had joined the investigation, although PW1 ASI Hardayal in his cross examination has stated that the place in question was a market area and shops were already opened when the accused was allegedly apprehended. The PW2 HC Muddin Khan has FIR No. 88/2016 State Vs Akram Page 8 of 18 PS: Hauz Qazi also stated that there was huge crowd at the spot. The IO had not asked the shopkeepers to join the proceedings. The Second IO also did not ask any public persons to join the proceedings. Further, PW1 ASI Hardayal in his examination has stated that he had shared the information with 45 passersby and asked them to join the proceedings, however, they had refused to join the proceedings. However, the IO/complainant had not given any notice to such persons who had refused to join the proceedings. The IO/complainant even did not note down any name and address of the persons who had refused as stated. He had also not served any notice to the persons who refused to join the investigation.
18. In the present case, as the record would reveal, no public witness to the recovery of the alleged knife has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected at Chaurasi Ghanta, Sita Ram Bazar at about 5 :45 p.m., in the evening. The place of recovery and apprehension of the accused is, therefore, clearly located in an area where public persons would be readily available. Thus, at the place and time of the alleged recovery of knife and apprehension of the accused, public persons would in all likelihood have been present and FIR No. 88/2016 State Vs Akram Page 9 of 18 PS: Hauz Qazi available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
19. There is nothing on record to show that PW1 ASI Hardayal or PW4 ASI Sunil had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
20. Thus, it is shown on record that the IO did not make any genuine efforts in the present case to get independent public witness joined the search proceedings despite spot being crowded area. No notice or warning had been given to public persons who had allegedly refused to join search proceedings, which also creates doubt on the story of the prosecution. Nonavailability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different FIR No. 88/2016 State Vs Akram Page 10 of 18 PS: Hauz Qazi thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under: "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
21. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution.
22. This Court is conscious of the legal proposition that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of FIR No. 88/2016 State Vs Akram Page 11 of 18 PS: Hauz Qazi the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
23. The present case rests entirely on the alleged recovery of case property, i.e. illegal knife, from the possession of the accused at the relevant time by police official PW1, ASI Hardayal, who was allegedly checking motor vehicle with PW2 HC Muddin at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II " The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the FIR No. 88/2016 State Vs Akram Page 12 of 18 PS: Hauz Qazi departure of the officer concerned and shall be attested by the latter personally by signature or seal.
"Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
24. In the present case, as the record would reveal, since public persons were not joined in the investigation, the departure entry of the aforesaid police officials, namely ASI Hardayal and HC Muddin, who were allegedly on patrolling duty in the area at the relevant time and had apprehended the accused with case property, could have been a vital piece of evidence. In the present case one DD No.28A dated 06.04.2016, PS : Hauz Qazi has been brought on record. This DD entry has not been proved in evidence. Be that it may, perusal of this DD entry would show that HC Hardayal alongwith Ct. Muddin Khan is shown to leave the Police Station in the area. There is no mentioning in the said DD that they had left the PS for putting barricades and for checking vehicles.
25. Further, as per the testimonies of the prosecution witnesses, the knife was sealed after preparation of sketch by the complainant with the seal of HD. The seal was handed over to Constable Muddin after use. However, no handing over memo of the seal has been FIR No. 88/2016 State Vs Akram Page 13 of 18 PS: Hauz Qazi brought on the Court record. Thus, in the absence of any evidence, it is shown by the defence, on the balance of probabilities, that the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property might have been tampered with cannot be ruled out.
26. PW1 ASI Hardayal has deposed that he had prepared rough sketch of the knife, which is Ex. PW1/A and seized the knife vide memo Ex. PW1/B. Only thereafter, he had prepared the rukka Ex. PW1/C. It is, therefore, clear that the seizure memo of the knife and its rough sketch were prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW1/B and the rough sketch Ex. PW1/A. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo and the rough sketch which came into existence before registration of the FIR. However, interestingly, the rought sketch Ex.PW1/A and seizure memo Ex. PW1/B bear the FIR FIR No. 88/2016 State Vs Akram Page 14 of 18 PS: Hauz Qazi number and case details in the same ink and handwriting used for writing other particulars thereon. The same indicates that FIR number was mentioned on the said documents while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the FIR No. 88/2016 State Vs Akram Page 15 of 18 PS: Hauz Qazi case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
27. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the FIR No. 88/2016 State Vs Akram Page 16 of 18 PS: Hauz Qazi manner alleged by the prosecution."
28. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the rough sketch Ex. PW1/A and seizure memo Ex. PW1/B. The same leads to only one conclusion that either the said documents were prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution.
29. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, daily diary entry regarding departure of the complainant has not been proved, possibility of misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the seizure memo and rough sketch have not been explained, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
30. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offence punishable FIR No. 88/2016 State Vs Akram Page 17 of 18 PS: Hauz Qazi under Section 25 Arms Act.
31. Case property be confiscated to State as per rules.
32. The accused has already furnished bond under Section 437A, with one surety along with photographs and Digitally copies of address proof. signed by DINESH DINESH KUMAR KUMAR Date:
2018.07.23 17:08:14 +0530 Pronounced in the open Court on (Dinesh Kumar) rd this 23 day of July 2018 MM08 (Central) Tis Hazari Courts, Delhi.FIR No. 88/2016 State Vs Akram Page 18 of 18
PS: Hauz Qazi